Challenges and concerns about reporting under Rules 32/35
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Widespread failings within immigration detention to safeguard people are well documented, with fundamental flaws identified at each stage of the process. Safeguards are not considered by specialist organisations or official reviews to offer satisfactory protection to people in detention. Individual examples of failures in safeguarding decisions regularly form the basis of successful legal claims against the Home Office. These systemic shortcomings are also regularly mirrored in the experience of visitors groups and testimonies of people in detention.
Concerns about the Home Office’s key safeguarding policy: Adults at Risk (AAR) are set out in Ongoing Criticisms and Developments.
This section concerns the role of healthcare departments in identifying people who are particularly at risk within the detention environment and reporting their concerns to the Home Office, a process known as Rule 32 within STHFs, and Rule 35 for IRCs. The policy framework for this process of identification and reporting is set out in detail above. In essence the Home Office requires clinicians in detention sites to make written reports to the Home Office in three situations:
Rule 32/35 (1) where a person’s health may be “injuriously affected by detention.”
Rule 32/35 (2) where a person is suspected of having “suicidal intentions.”
Rule 32/ 35 (3) where a person “may have been the victim of torture.”
The purpose of these reports is to trigger a review of the person’s detention by the Home Office following the AAR policy.
The Home Office publishes quarterly statistics on both the numbers of Rule 35 reports and whether they result in the individual’s release.[1] These show consistent data trends dating back to 2015 that reports made under Rule 35(1) and 35(2) are very infrequent compared to reports made under Rule 35(3). The numbers of people released following any type of Rule 35 report are very low. Official data is not published regarding Rule 32 in SHFTs, however monitoring reports tasked with considering this process[2] reflect the experience of visitor groups that such reports are very infrequently completed.
As a result, people who have been tortured, who are suicidal, or whose health is at risk, continue to be detained for reasons including:
Clinicians do not complete Rule 35(1) and Rule 35(2) reports.
The Rule 35 reports when they are completed are poor quality.
The Home Office refuses to accept medical evidence when this is provided.
In addition to clinical flaws in the operation of Rule 32/35, a culture of disbelief of detained people in healthcare facilities has also been documented. The overriding theme of safeguarding failures in detention has been an entrenched reluctance by the Home Office to accept medical evidence of harm and to release detained people because immigration enforcement matters are considered to outweigh all other considerations.
The limited number of Rule 35(1) reports documenting the risk of harm of detention compared to reports under Rule 35(3) documenting a history of torture is difficult to reconcile with the research evidence and testimonies of detained people about the prevalence of symptoms of mental illness in torture survivors (and who should therefore have both a Rule 35 (3) report and Rule 35 (1) report) and the known adverse effect of detention on people with such conditions.
The European Committee for the Prevention of Torture (CPT) has raised concerns at the failure to complete Rule 35(1) reports where an individual disclosed a history of torture. Research within the sector also provides evidence that both Rule 35(1) and Rule 35(2) is not properly used by clinicians working in detention sites. This is further supported by Medical Justice’s analysis from their casework, evidencing a troubling lack of Rule 35(1) and Rule 35(2) reports. As highlighted above, their report , published in 2022, analysed evidence from 45 people in detention between July and December 2021 who had medico-legal reports (MLRs) completed by Medical Justice’s independent clinicians. Of this group, 82% experienced a deterioration in their mental health as a consequence of their continued detention and 87% expressed suicidal thoughts. However, none of these people had the equivalent Rule 35 reports. These concerns were repeated in the charity’s follow-up published in September 2023. Here a review of MLRs and medical records of 66 people in detention undertaken between 1 June 2022 and 27 March 2023 found 64 had experienced a deterioration in their mental state by the time of assessment and all were at risk of deterioration, yet only 5 individuals had a Rule 35(1) report completed.
A further concern is the fact that, even when Rule 35 reports are completed the assessments are inconsistently completed and do not address the relevant issues. The CPT concluded: “Too many Rule 35 applications are not properly filled out and many do not contain information on the impact of detention.” The last annual inspection completed by the Independent Chief Inspector of Borders and Immigration noted “a lack of consistency in the approach, content and conclusions of R35 reports across IRCs and between different doctors at the same IRC, leading to varying quality of reports…”[3]
A detailed clinical analysis of the Rule 35 mechanism commissioned by the Brook House Inquiry into its operation at Brook House IRC between 1st April 20217 to 31st August 2017 was completed by an independent GP, Dr Jake Hard. He found around 75% of Rule 35(3) reports he examined were inadequately completed. In particular, he noted that there was either no conclusion regarding the possibility of previous ill treatment being torture, or no conclusion on the impact of ongoing detention.
The nature of a culture of disbelief concerning the experiences of people in detention is difficult to directly evidence. However, this is an endemic theme referenced in academic research throughout the UK’s system of assessing asylum claims as well as explained in NGO evidence to reviews of immigration detention since 2016. This is also echoed by visitor groups and testimonies from people with lived experienced of detention.
Further detailed research addressing this endemic cultural issue for mental health staff working in IRCs is set out in Durcan G, Stubbs J, Boardman J. (2017) Immigration Removal Centres in England: A mental health needs analysis. This study sets out how a combination of lack of supervision of mental health practitioners was allied to development of such endemic disbelief “as a defence and coping mechanism to working in such a difficult environment with minimal support. Staff discussed how everyday they witness such distress and hear “these awful stories and there is nothing you can do to help.” They discussed how it resulted in people becoming “desensitised.”
The recognition of a culture of disbelief within immigration detention healthcare has permeated official reviews such as the report of Stephen Shaw (2016) which found such a culture within clinical staff dealing with healthcare issues of detained people. More recently the Brook House Public Inquiry report referenced a culture of disbelief as one of the key factors underpinning the Chair’s recommendation that a review of Rule 35 was required.
There are numerous examples of decisions by UK courts where the Home Office has not correctly assessed a detained person’s situation following receipt of a Rule 35 report and has refused to release that person as required by its policies. This has then led to a legal claim and payment of compensation. In addition to individual legal claims, systemic analyses of the Home Office’s approach from various reviews have raised concern that decisionmakers regularly refuse to accept medical evidence that demonstrates a detained person should be released. This emerged from the conclusions of the Shaw Review (2016), and the Home Affairs Select Committee (2019).
In summary there has been longstanding and widespread recognition that Rule 32/35 is ineffective in protecting detained people from harm. The need for change has been recognised in Parliament and by the key professional organisation, the British Medical Association, representing GPs who work in detention.
Independent thematic reviews of practice in immigration detention such as those undertaken by Stephen Shaw in both 2016 and 2018 clearly identified the need for reform. Detailed analysis undertaken by the Independent Chief Inspector of Borders in reports published in 2020, 2021 and 2023, have repeatedly identified systemic problems with this central safeguarding process. A recognition of the failure of the process and recommendation for reform was also set out in trenchant terms by the Brook House Public Inquiry. And, the European Committee for the Prevention of Torture (2024) confirmed the problem remains.
, British Medical Association
, by the Independent Chief Inspector of Borders and Immigration (ICIBI). Further reports from ICBI available.
and
. Extract - Para 26” We are extremely concerned that the Rule 35 process is plagued with too many long delays, sets too high an evidential burden, and that internal review panel recommendations to release are being overturned by senior Home Office officials.” And para 28 “Currently, decisions relating to Rule 35 reports are made by the caseworker responsible for progressing an individual’s case, as well as their detention. This is not a fair or robust system. We urge the Government to explore alternatives that would ensure independent oversight as part of the Rule 35 decision making process.”
. Extract - para 33 “In my view, there is clearly a deeply rooted, systemic problem in relation to the adequacy of the operation of the safeguards under Rule 35. I do not consider that immigration detention practices have significantly or sufficiently addressed these issues and am therefore recommending a review of the implementation of Rule 35 across the immigration detention estate.”
[1] These statistics are published by the Home Office in excel spreadsheet form
[2] Pg 5
